LEGAL ASPECTS OF SEXUALLY TRANSMITTED DISEASES



Stanley M. Bierman MD, F.A.C.P. (C2004)

    The basic legal principles are clear and simple in matters relating to sexually transmitted diseases (STD): It is the legal duty of a person with an STD to warn others and to take appropriate measures to prevent infecting their partners. Failure to do so makes a person guilty of a tort and allows plaintiffs who have been infected to be compensated for injuries sustained. A tort is a wrongful act, injury or damage for which civil action can be brought. A plaintiff who is wrongfully infected with an STD can sue for negligence or for an intentional tort, which includes battery and fraud.

INTENTIONAL TORT: a conscious desire and deliberate attempt to inflict injury another individual

1.  Intentional transmission of disease
2.  Battery
3.  Intentional infliction emotional stress
4.  Fraud (willful concealment)
5.  Misrepresentation

NEGLIGENCE: behavior that falls below legal standards or lack of care that a reasonable person would expect to be exercised.

1.  The defendant knew or should have known that he or she had an STD
2.  The defendant acted recklessly and did not take reasonable precaution to avoid infecting 
     the plaintiff
3.  The defendant is liable for battery, fraud or intentional infliction of emotional distress

FOUR ELEMENTS NECESSARY FOR ACTION IN NEGLIGENCE

1.  A duty of care on the part of the defendant
2.  A breach of that duty
3.  Causation
4.  Actual loss or damage

NEGLIGENT CONDUCT INCLUDES:

1.  Careless exposure to disease
2.  Careless failure to detect STD by self-examination
3.  Careless failure to discover an outbreak
4.  Careless failure to inform a partner
5.  Careless failure to prevent transmission (condom)
6.  Any combination of the above

CAUSATION: for intentional tort or negligence, plaintiff must show causation..a particular cause, without which the injury would not have been sustained

1.  Can the specific source of infection be traced to the defendant?
2.  What facts can be demonstrated to prove the defendant alone is liable?

BATTERY: Defendant knows he has a contagious STD and knows the probability of transmission is great. Sexual activity resulting in infection can constitute the intentional tort of battery.

INTENT: the deliberate intent to cause or transfer disease

CONTACT: unconsented, unprivileged actual touching

OFFENSIVE CONTACT: touching that offends a reasonable sense of personal dignity

DEFENSE AGAINST BATTERY: Defendant lacked knowledge of STD and consent for touching was allowed by plaintiff. However, consent to sexual relations vitiated by misrepresentation of contagious condition

FRAUDULENT MISREPRESENTATION:

1.  A false representation by the defendant
2.  Knowledge or belief by the defendant that the representation is false
3.  Intention to induce the plaintiff to rely on misrepresentation
4.  Justifiable reliance by plaintiff on the promise
5.  Damage to the plaintiff resulting from this reliance

DEFENSE AGAINST FRAUDULENT CONCEALMENT:

1.  Assumption of risk
2.  No knowledge by defendant of infectivity

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

1.  Outrageous conduct resulting in physical harm and emotional harm
2.  Exceeds the bounds tolerated by society

LAWYER'S LEGAL CHECKLIST:

1.   History of relationship with defendant
2.   Medical history of plaintiff and defendant
3.   Sexual history of plaintiff and defendant
4.   Actual injury:
5.   Date, time, place
6.   Medical evidence
7.   Mental and physical condition partners
8.   Use condoms or spermacides
9.   Plaintiff's effort to question/examine defendant
10. Defendant's reputation in community
11. Defendant's financial status
12. Employment
13. Homeowner's insurance
14. Other assets
15. Plaintiff motive for legal action
16. Revenge
17. Compensation
18. Plaintiff's willingness to submit to scrutiny of private life